[Matthew Courtney]

Sunday morning I was stopped a little bit before dawn by Louisiana Wildlife and Fisheries. The stated purpose of the stop was to verify compliance with safe boating regulations. Upon demand to see 3 life jackets, I produced them. The officers then demanded to see a fire extinguisher. I advised the agents that since my boat did not have a built in fuel tank, my understanding was that a fire extinguisher was not statutorily required.

The agent in charge replied that unless I could grab the gas tank and toss it into the water should it catch fire, I needed a fire extinguisher aboard. I apologized for my misunderstanding while wondering to myself if there actually are people who would pick up a 15 gallon gas tank that is on fire. For the record, I could have 15 fire extinguishers, if my fuel tank catches fire, I am going overboard before I grab a burning gas tank. I am correct, I found out later, only permanent fuel tanks require fire extinguishers.

The next issue arose when the agent asked to inspect our fish box. I consented and opened the box. The box had one legal fish and some bait and ice. Next, the agent insisted on searching the other two ice chests. I refused to consent and they searched anyway, finding nothing but lawfull snacks and other refreshments.

They then insisted that my friend who was driving the boat take a field sobriety test. There was no reason to do this. He had not been drinking. He doesn't drink. That is why he was our designated driver.

The agents never even requested permission to come aboad. If they had probable cause to believe any crime had been committed, they should have told us or would have cited us.

This is the second such stop that they have made on me in a two
2 year period. After the first stop was made, I wrote the Governor, the State's Attorney General, and the secretary of the Department of Wildlife and Fisheries. Thay assured my that their agents would be trained better and that such unlawful "compliance checks" would cease. I also had a lengthy conversation with the gentleman who heads the DWF enforcement division, and he concurred that he would better train his men to comply with the law.

The relevent case law is State v Mchugh that holds:

In summary, we hold that a game agents stop of a hunter in or departing from a wildlife habitat in open season and detention of him for the limited purposes of a license check and requests for game information and inspection does not violate the state or federal constitution. Our holding today is limiled to the type of stop described in this opinion. Any further detention must be besed on consent, probable cause, or reasonable suspicion.

What should I do now?

[hammer4nc]

How much time and effort do you want to invest, Matt? Writing the letters and all was a responsible and good thing to do, but probably did nothing more than provide them entertainment in the break room, truth be told.

What with all the talk about "stings" happening lately, why not set up your own? Sounds like you've researched the law, go out again in the boat (full compliance), in the same area, I'll bet you get shaken down in a similar manner. Someone with hidden video documenting the event...hey, bring along your letters from the DFW secretary, for the warden to read out loud, my guess is he'll come unglued enough to make an idiot of himself. The tape will be gold, you can set your price at that point.

[HABU]

What should I do now? What, are you kidding? Get the fetch out of La. post haste!

[Sarge]

all of which, unfortunately, involve attorneys.

If you had been cited, I might suggest that you called the local prosecutor and see if somebody there would just talk to you about it. If you were cited I missed it, but at least they would know what's going on and would probably view that agency's submitted cases with a watchful eye.

Next would be to write another letter to the state AG office, and explain that this is the second such occurence in recent history and you are ready to take the state to court on the conduct of their agents- and you require some assurance that a) the offenders are being decisively dealt with (deprived of the opportunity to repeat the conduct), and b) this will NEVER happen again- not to you or anyone else. Get it in writing this time.

Third would be to do just that. You can ask for the moon of course, and you might even be awarded some punitive damages, but what you really want from all this is to have the state's LE folk simply follow the law as it relates to seach & seizure. You could certainly file suit and ask for an injunction to prevent future conduct of this type, along with reasonable legal fees. If you get an injunction against the officer/agency, then repeat performances would insure that Officer HotDog and his agency would be dealing with a contempt citation from the court that issued the injunction- instead of just another letter to HQ from a PO'd boater.

I don't know if your particular state has case law that allows these folk to board uninvited based on a simple equipment violation, but it sounds like they are taking considerable license with 'reasonable suspicion' for an unwarranted search. This is something that would need to be researched before you start.

Unfortunately, it sometimes takes a lawsuit to straighten these people up. It is not a pleasant experience for anyone involved. If you have a 'Legal Aid' or similar office in your area you might talk to them first. They are generally quite objective on these issues, and can probably tell you whether you have sufficient legal grounds to pursue the issue.

I'm a cranky old cop myself, but nothing makes me crankier than to see my own kind re-writing the Constitution on a 'case by case' basis. Seems some of us occasionally forget the mention of upholding that Constitution in the performance of our duties...

Good luck-

[CZ-75]

If you have a 'Legal Aid' or similar office in your area you might talk to them first.


Or, dare I say it, the ACLU.

[Matthew Courtney]

Sarge,

I have more money than I have sense. I can fund legal battles ad nauseum. My real question here is " is it reasonable for me to be pissed off by this?" In the alternative, " Is it reasonable to expect DWF to preserve the resource that I enjoy while denying them one of their tactics for so doing"?

I think so, but I want some feedback on it, as ocassionally I tilt at windmills.

[Steve in PA]

People think LEOs push the issue on searches and seizures!!!! In PA the PGC has more "authority" for s&s than any LEO!!!!

[Dex Sinister]

I have more money than I have sense. I can fund legal battles ad nauseum. My real question here is " is it reasonable for me to be pissed off by this?" In the alternative, " Is it reasonable to expect DWF to preserve the resource that I enjoy while denying them one of their tactics for so doing"?

IOW, is it reasonable to demand that those enforcing the law also obey it? Yes.

Dex http://www.gamers-forums.com/smilies/contrib/ruinkai/FIREdevil.gif

[HankB]

Reminds me of what happened to a friend of mine up in the People's Republic of Minnesota quite a few years ago.

He and some friends had been fishing, and on their way out of the area they were stopped for a "license and compliance check" by the DNR. Their fishing licenses were checked, the boat & trailer were checked for some kind of plant that they didn't want spreading, and so forth. All was OK, but it was obvious the ranger (or game warden?) wanted to find SOMEthing.

Then it came time to check that they weren't over the possession limit. They'd already cleaned and fileted the fish they'd caught, leaving on the skin for positive ID, and they KNEW they were legal. But the ranger told them "You guys will want to spread some plastic here - I want you to empty your cooler and line up the fish."

"No" said my buddy.

"You HAVE to - that's the law!" shouted the ranger.

About this time, another guy started video taping all this, much to the chagrin of the ranger.

"Turn off that video!"

"No - this is needed for EVIDENCE, and you DON'T have authority to stop me from videotaping public servants in public places doing official duties!"

Barely controlling his rage, the ranger turned again to my friend, and shouted "EMPTY OUT THAT COOLER!"

"No, I won't. I opened the vehicle, the cooler is right there, and I'm peacefully submitting to a search, but nothing in the law requires me to do YOUR searching for you!!"

With poor grace, the ranger unloaded the cooler & counted the filets - they were within the limit - and, since the camera was still rolling, put the stuff back in the cooler. As my friend said "It's not our job to pick up after you!!"

BTW, the fish was packed in dry ice . . . and the ranger didn't have gloves. Can we say "Frostbite?"

I love it when a story has a happy ending. :D

[goalie]

Yeah, Minnesota has been bad for a while, but it is getting better, you can tell by how much whining is printed on the editorial page of the Minneapolis Red Star, I mean Star Tribune.

[Standing Wolf]

I'd file a law suit: like criminals, government does everything it can get away with until law-abiding American citizens put a stop to such predations.

[jimpeel]

First, place a copy of State v Mchugh in your boat in a watertight container with all of the pertinent passages highlighted in red.

Second, lash a boarding pike to your boat which could be used to push their boat away from yours to prevent unauthorized boarding without proper permission being granted.

[Peetmoss]

Man you guys have it rough. The last time I encounter a LEO on the water I waved at him while drinking my beer he waived back btw I was driving the boat. And for all who are going to yell and scream at me, I was sober I had just opened it and it was my first one. They are pretty mellow here on the water unless your being stupid or very unlucky they leave you alone.

[Ed Brunner]

Obviously I am not a lawyer, but I notice that the law you quote says "In summary, we hold that a game agents stop of a hunter..."

What method did they use to identify you as a hunter? The law is not worded to apply to all, only hunters.

[Matthew Courtney]

Obviously I am not a lawyer, but I notice that the law you quote says "In summary, we hold that a game agents stop of a hunter..."

They did not identify me as a hunter in or near a game area. That is why the stop was illegal.

[justice4all]

Most search and seizure battles are fought in the criminal arena, after charges have been brought based on something that was found in an illegal search. I don't know how far you would get in a civil lawsuit. But if you've got the money, talk to an attorney, and see if it would be worth the hassle and expense. I wouldn't expect to win much in damages, though, because you weren't injured financially, and it's hard to sue the government, what with sovereign immunity and all.

[Matthew Courtney]

Most search and seizure battles are fought in the criminal arena, after charges have been brought based on something that was found in an illegal search. I don't know how far you would get in a civil lawsuit. But if you've got the money, talk to an attorney, and see if it would be worth the hassle and expense. I wouldn't expect to win much in damages, though, because you weren't injured financially, and it's hard to sue the government, what with sovereign immunity and all.

That's the downside of the bill of rights. It only really protects the guilty. Louisiana allows itself to be sued for actual money damages, but they only would amount to a few bucks.

The way to do this would be to try and get a suit certified as a class action on behalf of the hundreds of thousands of people that have been illegally stopped since McHugh was handed down in 1994. Having the suit certified as a class action might be enough leverage(potential dollar loss) to get DWF to change their ways. The problem may be in finding a lawyer who values civil rights more than the dollar and is sympathetic to boaters and fishermen.

If the thing were to go the wrong way, I could end up crippling the agency that protects the resources that I highly value and enjoy. I don't want to keep DWF from doing their admittedly tough job. I just want them to balance the conservation and safety interests of the general public with the privacy interests of individuals.

[Zundfolge]

That's the downside of the bill of rights. It only really protects the guilty. Louisiana allows itself to be sued for actual money damages, but they only would amount to a few bucks.

Don't sue the agency, sue the "officers" for violating your civil rights.

These guys are much more likely to start obeying the law if it will cost them personaly then if it costs their department.

It also might deter bullies who can't get a job as a real cop from becoming game wardens (no offense to you game wardens out there ... Most are good guys, but there are a few who get the job because they can use their authority to bully people ... same as police officers and mall security guys :p )

[justice4all]

As I understand it, there used to be a common law cause of action against police officers and agencies that exceeded their authority in searches and seizures, but sadly that doesn't fly anymore. The point was, this allowed people who were wrongfully searched, but never charged with a crime, to nevertheless vindicate their 4th Amendment rights. Sadly, now the cops can search you all they want, and there really is little you can do about it except exclude the evidence at trial. Of course, this does no good to anyone who was not hiding anything, but nevertheless stood up for his rights.

[Matthew Courtney]

justice4all,

Common law has never existed in Louisiana. Every thing has been codified for over 200 years.

If I cannot get the class action suit to fly, I will drive around without a life jacket aboard until I can find a DWF agent who will stop me and search my boat. After all, fishing is as much about finding the right spot as it is about using the right bait. Entrapment can be a two way street.

[CGofMP]

My take on this is simple....

If I have very little money I can do very little. Therefore if I get stopped and abused by LE I can do almost nothing about it unless the violation is gross.

Net Sum = 0 I get violated nothing happens others in my position get violated too


On the other hand, if I have the funds to take LE to task over violations of my constitutional rights then I protect all of the others he would abuse as well.

Net Sum = ++ I get violated but I hammer the hell out of those violating my rights thereby protecting others.


Far be it for me to spend your money for you, but if you are looking for a way to have some fun, exact a little retribution and help others at the same time, taking a bully to court would seem to be a net gain for us all.

Charles